D&SNG says 416 Fire lawsuit should be thrown out

Railroad: Government has no standing to seek firefighting costs

The Durango & Silverton Narrow Gauge Railroad says the U.S. government has no legal standing to sue for costs related to the 416 Fire.

Durango Herald file

D&SNG says 416 Fire lawsuit should be thrown out

The Durango & Silverton Narrow Gauge Railroad says the U.S. government has no legal standing to sue for costs related to the 416 Fire.

Durango Herald file

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The Durango & Silverton Narrow Gauge Railroad has filed a motion to dismiss a $25 million lawsuit accusing it of starting last summer’s 416 Fire, saying the U.S. government has no standing under state or federal law to recover costs for fighting wildfires.

In July, the U.S. government accused the D&SNG of starting the 416 Fire, which burned more than 54,000 acres of mostly national forest lands in summer 2018, north of Durango. Officials also announced a lawsuit that seeks $25 million from the railroad for damages and fire-suppression costs.

But in their first comments since the lawsuit was filed, lawyers for the D&SNG argue the lawsuit should be dismissed.

The railroad lays out two central arguments:

First, it argues there is no federal statute that allows claims to recover fire-suppression costs.And second, D&SNG attorneys assert Colorado law allows for recovering actual damages – but not fire-suppression costs.The railroad’s attorneys, who did not return calls seeking comment, say because the 416 Fire didn’t burn any structures or cause any injuries or deaths, the U.S. government’s lawsuit has no legal standing and should be thrown out.

“(The U.S. government) cannot maintain a claim for fire-suppression costs as courts have only allowed recovery for damages related to direct damages by fire,” the D&SNG’s motion to dismiss says. “... There were no reports of burned structures, personal injuries or death.”

A spokesman with the U.S. Department of Justice, the legal arm of the U.S. Forest Service, said the motion to dismiss is being reviewed and a response will be filed by Oct. 1, barring a request for an extension. He declined to comment further.

In the lawsuit filed July 2, U.S. Attorney Jason Dunn argues the “United States suffered significant damages, including expenses, in its efforts to suppress the 416 Fire and to rehabilitate the public lands damaged by the 416 Fire, a rehabilitation process that still continues.”

The lawsuit cites “Colorado Revised Statute 40-30-103,” which says “every railroad company operating its line of road, or any part thereof, within this state shall be liable for all damages by fires that are set out or caused by operating any such line of road, or any part thereof, in this state, whether negligently or otherwise.”

The U.S. government hasn’t said how much of the lawsuit is for fire-suppression costs and how much is for damages.

On the day the lawsuit was filed, a news release from the U.S. government said “approximately $25 million was spent in suppression costs and other damages, including rehabilitation costs, which are still to be fully determined.”

The lawsuit, however, says the U.S. government is seeking “damages in an amount to be determined at trial.”

It took more than a year for the Forest Service to announce the D&SNG was the cause of the 416 Fire, saying a cinder was cast off one of the train’s coal-engine smokestacks, sparking a blaze that went on to become Colorado’s sixth-largest wildfire in recorded history. The fire caused economic losses in Southwest Colorado and prompted thousands of evacuations.

“Protecting our public lands is one of the most important things we do in the U.S. Attorney’s Office,” Dunn said at the time. “This fire caused significant damage, cost taxpayers millions of dollars and put lives at risk. We owe it to taxpayers to bring this action on their behalf.”

Dunn said the D&SNG has denied it caused the fire. There was no mention of whether the D&SNG believes it started the fire in its motion to dismiss the lawsuit.

D&SNG attorneys say they have repeatedly requested a copy of the federal report on the fire but have not received it.

D&SNG owner Al Harper had said he will take responsibility and necessary actions if his train is found liable for starting the fire June 1, 2018. In recent weeks, Harper has said he has been instructed by his insurance company to not make additional comments about the 416 Fire.